CHAIR: Thank you. Professor Janette Hartz-Karp, we do actually refer to people by surnames on the committee for the purposes of Hansard.

Prof. Hartz-Karp: Whatever.

CHAIR: Thank you for joining us by teleconference today. I would like to ask if you could state the capacity in which you appear before our committee today.

Prof. Hartz-Karp: I am a professor at the Curtin University Sustainability Policy Institute, where my focus is on deliberative democracy.

CHAIR: Although the committee does not require you to give evidence under oath, I advise you that these hearings are formal proceedings of the parliament and warrant the same respect as proceedings of the respective houses. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of parliament. The evidence today will be recorded by Hansard and attracts parliamentary privilege.

Professor Hartz-Karp, thank you very much for the articles that you have sent us. These have been given to committee members, and I do note that you are also holding a re-energising our democracy forum at parliament here in Canberra on 4 November. I would like to invite you, if you so wish, to make a short opening statement to our committee.

Prof. Hartz-Karp: Yes, fine. Could I just correct and say that I did not, as far as I know, personally send through some articles, and I am really happy to send through others, if that is of any help.

CHAIR: Thank you. We certainly have found some of your work.

Prof. Hartz-Karp: Fine. My opening statement is: I have been drawn to this work largely because of the perception, certainly among the community but also among politicians and public servants, that the community engagement that they are often holding is not fulfilling its intended task, that the idea is to bring the community into the deliberations closer to government more, so that government does not get into moving away from the intent of what the public might want. However, often what is eventuating is that, after these community engagement techniques, which are often held with all good intentions, the public feels disaffected and feels as though they are being used tokenistically; often they are even angrier or more disaffected and are unlikely to want to participate.

It was really because of this that I have been asked by public servants, by government officials, by NGOs, if I could innovate to come up with different ways where we might engage citizens to get greater ownership, better decisions, greater legitimacy, greater sense that these decisions reflect communitarian interests as opposed to specific and vested interests. I have been doing this for about 10 years. It was really only after the first number of years that I found a good term for it, being 'deliberative democracy'. The intent is deliberate, to try to move away from the notion that we are just talking with, often talking to, maybe hearing the voice of citizens, and often individual citizens, to the notion that what we are really talking about is democracy and it is considered public deliberation in issues that really impact, or may well impact, themselves or future generations.

So it has much more to do with the whole process of policy development and decision-making than it does ticking a box or adhering to a regulation or simply knowing that you have told the public something. That might be enough for an opening statement, unless you have some questions.

CHAIR: Yes. As you would be aware, this inquiry is into the National Memorials Ordinance, which is the regulation by which our national memorials are brought into being. The idea of a national memorial is clearly something that must have a wide community mandate and buy-in and support. So I would be interested in your thoughts about how we make the processes of considering proposed memorials something that the community can engage with us on. What would your thoughts specifically be around that?

Prof. Hartz-Karp: I guess government has three ways to go. I was speaking to someone involved in the UK, and they talk about 'nudging', 'shoving' and 'learning collaborative problem solving'. The 'nudge' is the social marketing when you try to get them to do the right thing; the 'shove' is when you come up with some regulation or legislation; 'learning the collaborative problem solving' is the one that we do least well, where we are trying to get better decisions at the end of the day. In terms of the issue that you are following, it would seem that all three of those things could well be available to you.

In terms of the 'shove', I guess, it seems to me that currently it is not very clearly stated in any sort of legislative regulative format what one is obliged to do or even the precision or the delegation that is involved in terms of engaging the public. It would seem to me that one thing that could be done is to state much more clearly the level of obligation in terms of public participation, the legal commitment to do, so the bindingness of it, the level of precision, how much ambiguity can they have to ignore this or to take it on, and the level of delegation, what sort of authority would be granted to any sort of third party arrangement to be able to do anything at all.

If that was clarified in terms of the 'shove' or the legislative capacity, that would be really helpful. Do you want me to continue or do you want to ask any questions as I go?

CHAIR: You have just talked about the 'shove' but I am interested in the deliberative side of that.

Prof. Hartz-Karp: I will briefly do the 'nudge' bit, just so we can see where the difference is. The 'nudge' bit is where you are trying to use social marketing, and often a lot of the online deliberation that we are doing is far more along that line than it is on the deliberative democracy. That is also obviously an angle that you can take.

The last one is the deliberative democracy line, where what we are trying to do is get some sort of ownership. The question is: how do you do that from where you stand as opposed to an agency? Obviously there is the notion of guidelines. Lots of agencies have guidelines, often which are basic minimum guidelines and they are often used as tick— box exercises after the event, in order to say that there is some accountability in it. So the big challenge for you is how you would create it, or how you could create the situation where we get innovation and we have what I began to call 'authentic deliberation' or 'authentic public deliberation', where people really understand that there are real options, that their collective intelligence is really needed in order to help government or any governing organisation to determine what the best option might be, and that this is a real civic opportunity to be able to do that.

One of the ways to do that, as I see it, that you may have is to have some sort of overseeing committee. This is not an advisory committee in the way that we currently know it but much more the notion of being an honest broker in the process. What that overseeing committee would be doing, I would think, would be to take a look at proposals that come forward, work out whether or not this is a significantly large or small issue—in other words, is it likely to have big or small impacts—and determine the extent of deliberation. I guess you could say, 'Do we always have deliberation?' Phil Freeman says yes, you can do minimal and maximal but you are better off involving the public as opposed to just trying to educate the public, and so my suggestion would be yes, that sort of honest broker group could be taking a look to see whether or not there should be some sort of independent process designers as opposed to the proponents and whether or not there should be some sort of separate and independent process. So then they are making sure that whatever process is set up is comprehensive, is transparent, is accountable, is inclusive and, I guess, fits the need, fits a specific need at the time. So, having set that up, I would presume that some sort of funding would need to be available in order to make sure that this process is an accountable one.

To be deliberative, it has three basic principles. They have been outlined in some of the papers that I have done, but just to overview them: the first one that says 'critical' is the representativeness, the inclusiveness; though if we are just hearing the same people, if we are hearing just the lobbyists or the people who understand themselves to be experts or having some sort of particular interest, we are hearing some aspects but we are certainly not hearing how this is going to be received in the broader community, nor what reasons the broader community might have for wanting or not wanting this.

So to me, that notion of representativeness, who is actually involved in the deliberation, is absolutely crucial. That does need to include those people. It is representative of the population at hand. It does need to include those people who are often forgotten or who are very difficult to get hold of, being groups like the young people, like the Indigenous people, non-English speaking people and so forth.

The second thing is deliberativeness, and I think we use that term incredibly loosely, but certainly in terms of deliberative democrats, it is that notion of how do we have people really understand that there is more than one route to achieve in the end, that they can understand the different routes, they can understand the trade-offs, they can understand the different perspectives, including expert views, but they would be able to say, 'Given our values, given what do we know about this, given our collective intelligence,' we would select this direction as opposed to that.

A deliberation is much earlier in the process than we normally go out. It is when there are still options; it is when there is still potential for being able to shift directions, both in terms of exactly what is done as well as where it is done.

The last thing is influence. What we have found, and what our research is increasingly showing, is that particularly if we are not funding ordinary citizens to be part of these processes, the key motivating factor for them is the feeling that they are actually going to make a difference. We are really very clear about the difference they will make. We will say, 'Your voice counts,' or, 'We need your voice,' but then we are not very clear about in what way, what is the process, where does this information go, how will it be taken into account and to what extent is there even a feasibility of influence? That can vary from, 'We will simply get back to you on the broader public and say why we can or cannot do this,' or, 'We will take your proposals to the next level of governance'—cabinet, whatever that might be, or even in this instance if it was a citizen's jury—'We are willing to trial this in some sort of format or other,' whatever part of the deliberation it might be, which is much more seldom, I guess, but occasionally it does happen.

CHAIR: How you create a relationship between processes like that? Clearly you still need, as you outlined in your earlier remarks, your honest broking committee that has to oversee and decide what level of deliberation you are going to give the community over a question. In terms of governments that have to at least provide some kind of architecture to mandate that process in the form of regulation or legislation, how should those things be expressed from a regulatory and legislative point of view?

Prof. Hartz-Karp: In my view, ideally it should be specifically a part of regulation. There are not very many places that have done that. Tuscany law 29 is an example of where Tuscany has tried to do that. The problem with what they did was they have not funded it sufficiently. Nonetheless it is an exemplar how one can include it in regulation. The problem I have is that if there is not something of a requirement in terms of what is required, proponents of whatever it may well be will very easily do the basic minimum procedures, and we will have exactly what we have always had.

Senator HUMPHRIES: Thank you for your evidence today. I understand the concept and the theory that you are putting forward. A few years ago the ACT government here used what they called 'deliberative polling', which I assume is a version of what you are talking about, to canvass the idea of an ACT bill of rights. Could you translate what you are talking about as a tool into some of the practical situations that we have found ourselves in as a nation, or maybe on a state—by—state basis, in recent years? Perhaps you could nominate a couple of major decisions that communities have been confronted with which you think would have been better managed, better understood and better outcomes achieved by virtue of the use of the sorts of tools you are talking about?

Prof. Hartz-Karp: I can give you an example of where it really backfired and when it did not need to backfire. I think it was terrible timing and a lack of sufficient information. I think when the Gillard government was trying to introduce the notion with climate change that they were going to use a citizens conference—I cannot exactly remember how it was—to help bring people along, what would have been required here would have been a deliberate process, it would have been probably a year-long process. It is something that is still horribly divisive. Even though we may well get legislation, it is still far more divisive than need be. I am trying to work with this in countries overseas where it could be done differently. There is some more possibility of people really understanding the implications of doing or not doing what is intended.

A process like that would have used social media. It would have used a number of different sorts of formats to get ordinary citizens involved. It would have tried to partner, if it could, with whatever media it could, whether that be radio, papers, whatever else—I have done all these things, by the way—and try to get them to be seen more as investigative journalism rather than just headlines, and try to get people in the broader community understanding that whichever decisions, whichever route we take, we have real dilemmas and we need to deal with the dilemmas. That would have included, for me anyway, small scale. It could have been citizens' juries that were actually given some TV coverage because it is often intriguing to see what happens behind the scenes, just like an ordinary jury. It could have included large—scale, 21st century town meetings, which I personally have held as large as 1,100, where people spend a whole day really understanding and often doing things where it is almost like playing reality games to find out that life is not all getting what you want. Life really is about having to make some choices and some trade-offs. Each thing would have then led into the next thing, so they are all informing and we are gathering momentum on the way through. That is very large scale.

The sorts of things that you are talking about in the main do not need to be large scale, but still in the main do need to be processes as opposed to an event. We have this notion that participation is an event. It is a something we do. It is putting out a submission or it is holding a deliberative poll. I see it much more as needing to be part of a process where we are trying to get out to scale as well as getting legitimacy of scale, as well as the legitimacy possibly of independent, random sample et cetera. Does that answer you or do I need to be more specific?

Senator HUMPHRIES: I think so. Conversely, can you point to a situation where you feel it would not have been an appropriate tool with respect to some major issue that we have confronted in the last few years?

Prof. Hartz-Karp: I think it is never, for me, very appropriate when a decision has already been made and really what you are trying to do is simply get the public on side and possibly to play around with the edges of an issue. For example, when I was working out of a minister's office, there was an agreement between us that if cabinet or the government had decided on an issue, that was simply not something that I would deal with. For me, there really needs to be the willingness to trust that citizens can actually help you come up with a wiser decision, in the sense that it would be more implementable, than you would have done by yourself. If there is not that sort of leeway, then I do not really think this process needs to be used at all. Use something else.

Dr LEIGH: Professor Hartz-Karp, thank you very much for your time today. I have a little knowledge of deliberative democracy as a result of holding the office just below John Dryzek for a few years. Something seeped through the ceiling perhaps. I am particularly curious as to your view on how precisely we should implement deliberative democracy here. There are a vast range of models, but can you tell us precisely what you think we should do to include deliberative democracy in the process of selecting memorials?

Prof. Hartz-Karp: Yes. I would not be proposing a specific sort of technique on you. That would be totally inappropriate. My notion again would be: how do you set up a system whereby it would have to be authentic? You cannot get away with doing inauthentic things and call them 'community participation'. If you are talking about education, fine, do it. But if we are really talking about at this point, or this proposal—and I would assume most proposals, unless they are minor adjustments for some sort of memorial, I do not know what specifically you include or not—that deliberation would be useful. What I would include would be the basic principles that would need to underline any deliberation and some sort of governing mechanism whereby it can be checked for that sort of authenticity, whether or not that be something like this sort of honest broker I was talking about or minimally some sort of independent evaluation or preferably some sort of independent design group that would take a look to say: 'What is the real issue? What are the problems? Where, how and whom do we need to involve, and how best would we do that, given the purpose of this?'

Potentially there is a third group or possibly even that group—and this is how we would need to evaluate it, with the honest broker checking to see that the evaluation is not just tokenistic, it is not just, 'How did we enjoy the day?'

CHAIR: Professor, can I ask, in context with that: our current process of putting memorials forward is where you have a group of proponents who are part of communities who come together largely to raise money, to build a monument, a memorial of some sort. Some of that money clearly goes to planning and community consultation. Would you expect when the community is funding them or there are private interests funding memorials that we need to mandate in some way a commitment from those proponents to be incorporating the deliberation and that process of deliberation into what we are putting forward?

Prof. Hartz-Karp: It seems to me that there is a large risk if you do not. As for the risk, I guess you have experienced that, where proponents with very good will and very good intentions go far too far in what they are doing, to a point where there is absolute public outrage; it is very difficult to pull back from it. I just do not see how you avoid a risk like that, because people would have very different perceptions, I would think, of what is huge and what is not. To give you a very small one, I started working up in Geraldton, which is a country town in Western Australia, and the enormous issue there was whether or not they were going to put a flag on the beach. For most people, it was fairly irrelevant but it caused absolute community outrage. This was an RSL group. The real question is: how do we know what the community is going to perceive to be an outrage or that it is going to be a non-event for them? I am not sure how you are going to know that without requesting something like this or, I suppose, obligating, in some way, that they do something for you to find that out.

Ms BRODTMANN: Thank you very much for taking the time to help us out with this hearing and also thank you for your thoughts on the notion of deliberative democracy. I am just wondering: ideally it sounds like what organisations or committees or others should do is that they should come to the table or come to the discussion with a blank piece of paper. 'We want a memorial,' and then they can actually shape what that memorial should be and deliberate on it, perhaps over a town hall discussion or a day-long discussion. I am just wondering: how far advanced do you go with the proposal? That is the question in terms of what you are putting on the table. That is the question I am asking. Would it be ideal for us to go to the table saying: 'We need a memorial; come up with an idea; please give feedback or thoughts on what the memorial should be'? Alternatively, how would it work if we were to say, 'We want another war memorial,' and we went into the group with that proposition on the table? How far developed can the concept be for this process to be fruitful or does it need to be a blank piece of paper?

Prof. Hartz-Karp: I do not think it can be a blank piece of paper. Mostly we do not have enough time and we do not have enough money to deal with a blank piece of paper. The framing of that question is really important and I think that the proponents, whoever they may be, need to be really clear that this is the purpose: 'This is why we want what we want.' I think that often takes quite a lot of consideration to figure out: 'It is a war memorial; yes, another one.' 'Why another? What is the purpose of having another one?' Can we at least be clear about that? When we are really clear about that, we can get into saying, 'And how would this best look and where would it best be placed if it is going to be a physical thing et cetera?' Ideally it is soon after people come up with a purpose that I think they need to find some means of finding out whether or not there is any general acceptability of that purpose or whether or not it is surprisingly problematic for the broader community.

I am not suggesting a blank page. I am suggesting a framing that is fairly broad that would still allow you to change from thinking that it is going to be something in some place to some particular intent that you have to celebrate or to remember something, which still has many options. If you have not got it that early, then there still need to be options, either in terms of how it might look, where it might be. The further down the track you get to a point where there really cannot afford to be any options anymore because you have put too much money into it, the more problematic it becomes to the broader community when they suddenly find out that there is a proposal that they have never heard about and they are outraged.

Ms BRODTMANN: I hear the need to frame. Rather than going to the consultation phase with, 'We want to have a war memorial, let us talk about that,' it should be, 'We want to honour those who served in war and how should that be?'

Prof. Hartz-Karp: I think also: why here, why now, why another? The reasons for this are also really important in enabling people to clarify it for themselves. Often that will help them in the framing. I do not know whether the issue is just to celebrate the dead. I do not know what the issue was why they wanted this additional war memorial. I have no idea. You have to get the proponents to be really clear about this, just like you have to be any time that you are trying to get any proposal forward. People are really clear of their justifications or at least their understanding of what it is that they are really trying to get to. That would also open them up to think about the different ways of getting to where they want to go.

CHAIR: Are there any further questions? Thank you Professor Hartz-Karp for spending time with us in order to give evidence today. That was very much appreciated. I am looking forward to seeing you in Canberra in a few weeks time.

Prof. Hartz-Karp: Perhaps I can just say there that, so far, we do not have enough people. I would be really appreciative—we need people from all the parties. We do not yet have enough.

CHAIR: At the end of a sitting week most people are gone out of the building; that is the problem.

Prof. Hartz-Karp: It was the Parliamentary Association that actually recommended that date. I think we might have to go back to the drawing table. The idea is to try to get people, politicians across the parties, to be doing probably what you are doing right now, which is really deliberating, but to do that on the whole notion of revitalising our democracy. We may well need to find another date that is going to be better for people.

CHAIR: I look forward to it when it takes place. Thank you very much. I will see you in Perth, I hope, some time soon.